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Pub Journal 1998 Vol 1.Pdf 1998 Journal of Supreme Court History, Vol I ~ PUBLICA nONS CO.MJvITITEE E. BarrettPrettyman,Jr. Chairman Donald B. Ayer LouisR.Cohen Charles Cooper Kenneth S. Geller James J. Kilpatrick Melvin I. Urofsky BOARD OF EDITORS Melvin I. Urofsky, Chairman HermanBelz Craig Joyce David O'Brien DavidJ. Bodenhamer Laura Kalman Michael Parrish KermitHaU MaevaMarcus Philippa Strum MANAGING EDITOR Clare Cushman CONSULTING EDITORS Kathleen Shurtleff Patricia R. Evans JamesJ.Kilpatrick Jennifer M. Lowe David T. Pride Supreme Court Historical Society Board of Trustees Honorary Chairman William H. Rehnquist Honorary Trustees Harry A. Blackmun LewisF. Powell, Je Byron R. White Chairman President Dwight D.Oppel1Uan Leon Silvel1Uan Vice Presidents Vincente. Burke, Jr. Frank e. Jones Dorothy Tapper Goldman E. Barrett Prettyman, Jr. Secretary Treasurer Virginia Warren Daly Sheldon S. Cohen Trustees George R. Adams Kenneth S. Geller Stephen W. Nealon Victor Battaglia FrankB.Gilhert Gordon O. Pehrson Hel1UanBelz John D. Gordan, III Leon Polsky Barbara A. Black William T. Gossett Charles B. Renfrew HugoL. Black,Jr. Geoffreye. Hazard. Je. WilliamBradfordReynolds Vera Brown Judith Richards Hope John R. Risher, Jr. Wade Burger Ruth Insel Harvey Rishikof Patricia Dwinnell Butler William E. Jackson Will iam P. Rogers Benjamin R. Civiletti Robb M. Jones Jonathan e. Rose Andrew M. Coats James 1. Kilpatrick Jerold S. Solovy William T. Coleman, Jr. Peter A. Knowles Kenneth Starr F. Elwood Davis Philip Allen Lacovara Cathleen Douglas Stone George Didden III Jerome B. Libin Agnes N. Williams Charlton Dietz Maureen E. Mahoney Lively Wilson John T. Dolan Howard T. Markey Jamese.Duff Mrs. Thurgood Marshall RobertE.Juceam William Edlund Thurgood Marshall, Jr. General Counsel Johne.Elam VincentL. McKusick JamesD.Ellis Francis J. McNamara) r. David T. Pride Thomas W. Evans Joseph R. Moderow Executive Director Wayne Fisher James W. Morris, Jf. Kathleen Shurtleff Charles O. Galvin John M. Nannes Assistant Director 11 General Statement The Supreme Court Historical Society is a pri vate non-profit organization, incorporated in the District of Columbia in 1974. The Society is dedicated to the collection and preservation of the history of the Supreme Court of the United States. The Society seeks to accomplish its mission by supporting historical research, collecting antiques and artifacts relating to the Court's history, and publishing books and other materials which increase public awareness ofthe Court's contribution to our nation's rich constitutional heritage. Since 1975, the Society has been publishing a Quarterly newsletter, distributed to its membership, which contains short historical pieces on the Court and articles detailing the Society's programs and activities. In 1976, the Society began publishing an annual collection of scholarly articles on the Court's history entitled the Yearbook, which was renamed the Journal of Supreme Court History in 1990 and became a semi-annual publication in 1996. The Society initiated the Documentary History of the Supreme Court of the United States, 1789-1800 in 1977 with a matching grant from the National Historical Publications and Records Commission (NHPRC). The Supreme Court became a cosponsor in 1979. Since that time the project has completed five of its expected eight volumes, with a sixth volume to be published in 1998. The Society also copublishes EqualJustice Under Law,a 165-page illustrated history of the Court, in cooperation with the National Geographic Society. In 1986 the Society cosponsored the 300-pageIUustrated Historyofthe Supreme Court of the United States. Itsponsored the publ ication ofthe United States Supreme Court Index to Opinions in 1981, and funded a ten-year update of that volume that was published in 1994. The Society has also developed a collection of illustrated biographies of the Supreme Court Justices which was published in cooperation with Congressional Quarterly, Inc., in 1993. This 588 page book includes biographies of all 108 Supreme Court Justices and features numerous rare photographs and other illustrations. Now in its second edition, it is titled The Supreme Court Justices: Illustrated Biographies, 1789-1995. In addition to its research/publications projects, the Society is now cooperating with the Federal Judicial Centerona pilotoral history project on the Supreme Court. The Society is also conducting an active acquisitions program which has contributed substantially to the completion of the Court' s permanentcoUection of busts and portraits, as well as period furnishings, private papers and other artifacts and memorabilia relating to the Court's history. These materials are incorporated into displays prepared by the Court Curator's Office for the benefit of the Court's one million annual visitors. The Society also funds outside research, awards cash prizes to promote scholarship on the Court and sponsors or cosponsors various lecture series and other educational colloquia to further public understanding of the Court and its history. The Society ends fiscal year 1998 with approximately 5,467 members whose financial support and volunteer participation in the Society's standing and ad hoc committees enables the organization to function. These committees report to an elected Board of Trustees and an Executive Committee, the latter of which is principally responsible for policy decisions and for supervising the Society'S permanent staff. Requests for additional information should be directed to the Society's headquarters at III Second Street, N .E., Washington, D.C. 20002, Tel. (202) 543-0400. The Society has been detennined el igible to receive tax deductible gifts under Section 50 1 (c) (3) under the Internal Revenue Code. ill Joumal of Supreme Court History 1998, Vol. I page Introduction Melvin 1. Urofsky Articles Chief Justice John Marshall (I 80 1- 1835) Herbert A. Johnson 3 Out of the Shadow: Roger Brooke Taney as Chief Justice James B. 0 'Hara 21 MelviUe W. Fuller Reconsidered James W Ely, Jr. 35 Judicial Management and Judicial Disinterest: The Achievements and Perils of Chief Justice William Howard Taft Robert Post 50 The Hughes Comt and Constitutional Consultation Barry Cushman 79 Chief Justice Earl Warren: Super Chiefin Action Bernard Schwartz 112 Hail to the Chief: A Bibliographical Essay on Six Chief Justices of the United States 133 John B. Taylor 166 Contributors 167 Photo Credits Copyright 1998, by The Supreme Court Historical Society I J I Second Street, N.E. Washington, D.C., 20002 ISBN 0-914785- 16-8 Introduction Melvin I. Urofsky Chairman, Board of Editors Despite complaints from scholars (includ­ much, the tone of the Court as a whole is greatly ing myself) that periodizing Supreme Court his­ affected by the skills of the Chief. The Court tory by the tenures of Chief Justices is histori­ that Earl Warren welded together to hand down cally inaccurate, scholars (including myself) a unanimous decision in the segregation cases continue to do that. We know that there are consisted of the same people who had frac­ problems. Sometimes Associate Justices, such tured the Bench in the preceding decade. as Holmes, Brandeis, Black, Frankfurter, and In addition, just as we see the President as Brennan are more important in determining the the head and the embodiment of the executive Court's direction than the multiple Chiefs un­ branch, so we see the Chief Justice as the head der which they serve. Black and Douglas, for and embodiment of the judicial branch. The example, began their careers on the Court un­ Consitution gives the Chief two roles, one as der Hughes, and outlasted Stone, Vinson and leader of a particular court, and the other as Warren, finally retiring under Burger. Moreover, "Chief Justice of the United States," leader of the Chief has only one vote out of nine, and the judiciary. U.S. Reports is full of decisions in which the In the essays in this volume we see how Chief Justice is in the minority. six of the men who have sat in the center chair Why, then, do we look so much at the man have shaped the judicial history of this coun­ in the center chair when we study the history try. For those whose appetites are whetted by of the Court? One reason is that while the these essays, John Taylor provides an exten­ Chief Justice may have only one vote, he is, at sive bibliography by which to pursue further the least, "primus inter pares"-first among readings. equals, and a strong Chief Justice can and will John Marshall's story may be the most fa­ lead the Court. There is a big difference be­ miliar, but as Herbert Johnson shows, it is one tween the behavior of the Court under strong always worth retelling, to remind ourselves Chiefs such as Taft, Hughes and Warren, and how great men have influenced our history. weak Chiefs such as Stone and Vinson. Even Roger Brook Taney is remembered chiefly as when the make-up of the side judges, as author of the infamous Dred Scott decision, Holmes called them, does not change very but his lengthy career on the Bench left the nation a legacy in some ways second only to Devise volume of the Taft Court, shows how that of Marshall in establishing the judiciary the former President reshaped the role of Chief as a co-equal branch of the government. Justice to become chief administrator of the James O'Hara argues that Taney's reputa­ court system, and in doing so greatly strength­ tion has been unfairly tarnished by that one ened the federal jUdiciary. Cushman is one of decision, and offers a different light on evalu­ the leading revisionist historians about the ating Taney. Court crisis of the 1930s, and in this essay he Melville W. Fuller is not a name that leaps suggests that Hughes, rather than being an to our lips, and even students of the Court enemy of the New Deal, tried to show the ad­ may be hard-pressed to say much about him.
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